Mst. Rohila Kurmi vs Temsu Kurmi

H. Deka, C.J.—This is an appeal by Mst. Rohila Kurmi who applied for letters of administration of the will of Mst. Somari Kurmi dated 27th January, 1955. She claimed to be the sole legatee under the will, and, as such, applied for the letters of administration with the copy of the will annexed. It was alleged that the testatrix died on 13th November, 1956 and that the will in question was the last will and testament executed by her.

It was shown in the said petition that one Temsu Kurmi was the brother of Somari Kurmi and a notice of this proceeding u/s 2/8 of the Indian Succession Act was served on him. He opposed the application for the letters of administration and alleged that the will in question, that was produced in court, was not the last will and testament of Mst. Somari Kurmi. He further objected that the will was not genuine nor the last will of Mst. Somari Kurmi and that was not properly executed nor attested.

He further stated that Mst, Rohila Kurmi, who is described to be the daughter of Bhola Kurmi in the will, was not in fact the daughter of Bhola Kurmi, the husband of Mst. Somari Kurmi, but was the daughter of one Mst. Sanichari, the sister of Mst. Somari, through her husband Gopi. He further alleged that by a will Mst. Somari had left her properties to Mst. Rohila and Temsu, the objector, each being entitled to half. He, however, admitted that Mst. Somari had brought up Mst. Rohila treating her as her own child along with the sons of Temsu.

The learned Additional District Judge, who heard the case, formulated the following issues, namely, (1) as to whether the will dated 27th January, 1955 was a genuine and valid will; (2) whether Mst. Somari Kurmi had a sound and disposing mind at the time of making the will; and, (3) whether the applicant-plaintiff was entitled to the grant of letters of administration as prayed for. The learned Judge came to a halfhearted finding on issue No. 1 and did not say definitely whether he held the will to be genuine or a fabricated one. On the other hand, he was inclined to hold that the will was not properly executed or attested, and, as such, he considered that there was no valid will in the eye of law and that the plaintiff was not entitled to the gram of letters of administration. In regard to the second issue, he found that he could not say with any amount of emphasis that Mst. Somari had not a disposing mind at the time of making the will.

In the light of the finding, particularly on Issue No. 1, the learned Additional District Judge dismissed the application for letters of administration and, it is against this order that the propounder has come to this Court in appeal. The learned Additional District- Judge did not hold in so many words that theme was Anr. will as urged by the caveator but tentatively held the will in question to be the last will but; not executed or attested in accordance with the law.

Therefore, the first point that will naturally arise for our consideration is whether the learned Judge was correct in holding that the requirements u/s 63 clause (c) of the Indian Succession Act were not properly, complied with. Mr. Bhattacharjee appearing for the respondent further added a plea to the effect that since Mst. Rohila Kurmi was described to be the daughter of Bhola Kurmi, which she was not, any grant of letters of administration in her favour is hit by Section 81 and that it should be read with Section 89 of the Indian Succession Act, which provides that a will or bequest not expressive of any definite intention is void for uncertainty.

Before coming to the contentions raised on the question of uncertainty or ambiguity in the will, I would like to discuss first as to whether the provisions of Section 63(c) of the Indian Succession Act were fully complied with. The provisions of this section require that:

the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Therefore, the normal requirement is that the witnesses , who evidently numbered more than two, saw the testatrix putting her mark or signature and that the witnesses attested the will in presence of the testatrix. On this point we might say that the evidence is very clear and there can be no two findings on a proper appreciation of the evidence. Shri Makhonlal Chaliha, who was an advocate practising in the courts of Dibrugarh and aged about 70 years, deposed on commission that he drafted the will Ext. I purported to be on behalf of Mst. Somari wherein Mst Rohila was made the sole legatee on instruction received from certain persons identified by a pleader''s clerk, Ramesh Chandra Deka of that Court.

He after having the will typed went to the house of the testatrix, which was within the Municipal limits of the Dibrugarh town itself, and explained the substance of the will to the woman--Mst. Somari and she admitted the contents to be correct and gave her thumb impression thereto (Ex. 1), The thumb impression was taken by Shri Chaliha himself and he made two endorsements under her thumb impressions. He deposed further that the woman was ill but not seriously and that she was of sound mind at the time of making the will and that she understood the contents of the will and had talked with him during the time he was sitting there.

He denied the defendant''s suggestion that she was incapable of talking at the time or that there was any will in favour of Mst. Rohila and Temsu as alleged by the caveator. There were other attesting witnesses including one Dhiren dra Mohan Das (P.W. 1) but Makhan Lal Chaliha was examined on commission and this P.W. was not there for the purpose of identification. He has not, however, challenged that there were no other witnesses or that the attestation was not done in his presence or in the presence of the testatrix.

It appears from his evidence that the testatrix was properly identified. He denied that there was any will where Temsu''s son Suren signed as one of the attesting witnesses, or, in other words, he denied the existence of any other will apart from the one presented in court, lie further deposed that he remembered Ramesh Chandra Deka, the petition-writer, to have taken the will from him for the purpose of alteration. His statement alone would be (sic) convincing to prove that the will was genuine, that it was executed by the testatrix in the (sic) of the witnesses and that her thumb make was properly attested by the witnesses and that there was full compliance with the requirements of Section 63 (c) of the Indian Succession Act.

The plaintiff''s version finds a support from the other witness Dhirendra Mohan Das (P.W. 1), a neighbour of the testatrix Mst. Somari. He is a businessman, He has no axe to grind against Temsu and he says categorically that Mst. Rohila Kurmi was the adopted daughter of Mst. Somari whom he saw with her since a long time. He was present at the time of the execution of the will and he signed the same as an attesting witness. He proved his signature.

He further supported Shri Makhan Lal Chaliha to the extent that he heard him explaining the will to the testatrix who was sitting inside her house in front of the door and Shri Chaliha was explaining to her the contents from the chair in the courtyard, where he was, sitting. He further testified the presence of other witnesses including Ramesh Chandra Deka who put their signatures as attesting witnesses. He deposed as to the existence of the testamentary capacity of Mst. Somari at the time.

He further denied the suggestion made by the defendant that at the time Mst. Somari could not speak or that she signified her intention of giving her property to Mst. Rohila Kurmi and Temsu Kurmi by pointing her fingers at them. This evidence is quite sufficient for the purpose of proving the proper execution and attestation of the will. On the other hand, the evidence adduced by the defendant on this point is (sic) worthy of any serious attention.

The witnesses on behalf of the defendant: including the defendant himself would not go very far to prove the suggestion on behalf of the defendant that there were two wills or that the will in question was not the last will of Mst. Somari. Even if we assume for argument''s sake that there was a will executed by Mst. Somari when she was speechless and could signify her intention only by pointing her fingers, evidently there would be lack of testamentary capacity and the will so executed would be void in the eye of law.

The defendant made no attempt to get the copy of the alleged will from Shri Makhanlal Chaliha who it was alleged had the last will with him. This is evidently a falsehood and cannot be accepted as true. There was no serious challenge as to the testatrix''s executing the will or as to the presence of the witnesses at the time whose signatures appear as attesting witnesses.

Further, there is no reason, as I have already stated, to disbelieve the two unconnected and respectable persons--Shri Makhanlal Chaliha and Dhirendra Mohan Das who prove satisfactorily the valid execution, and attestation of the will.

We next come to the other contention raised by Mr. Bhattacharjee as to the identity of the person to whom benefit was intended to be given by the will. Section 81 on which Mr. Bhattacharjee relied speaks of a will that when there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted, and he drew our attention to illustration (i) given under that section.

In this particular case, there was no ambiguity at all since even though Mst. Rohila Kurmi was shown to be a daughter of Bhola Kurmi, it is accepted even by the defendant Temsi Kurmi himself that Mst. Rohila was only six months old when her mother Mst. Sanichari died and that she was taken to the custody of and brought up thereafter by her aunt Mst. Somari. It is further admitted that Mst. Somari and her husband Bhola Kurmi had no child and that since infancy, namely from the time of the mother''s death, Mst. Rohila stayed with Mst. Somari and Bhola Kurmi and they brought her up as their own daughter.

Dhirendra Mohan Das (P.W. 1), to whom J; have already referred, deposed that Mst. Rohila was the adopted daughter of Mst. Somari Kurmi, and, therefore, in the will even if it is indicated that she was the daughter of Bhola, except that it was an inaccurate description, no further damage was done to the cause of the legatee. Bhola had evidently no other child. The evidence would support that for all intents and purposes Mst. Rohila was looked upon as the daughter of tire testatrix, and, therefore, there was neither any ambiguity nor any deficiency on the face of the will so that the proper legatee could not be identified. Section 75 of the Indian Succession Act rather gives the way of approach and it says that:

for the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons ....

In consideration of these, surrounding circumstances, it is clear that Mst. Rohila though described as the daughter of Bhola, was really intended to be the same girl who was adopted by him and his wife the testatrix Mst. Somari Kurmi. There was no question of applicability of Section 89 of the Indian. Succession Act because the intention was very definite and clear and the person who was sought to be benefited is also definitely identifiable from the description given in the will as well as from the deposition of the witnesses. The defence witnesses are discrepant as to the time of the execution of the supposed will which is not in existence or which is not proved to be in existence. We find, no substance in the contentions raised on behalf of the respondent.

We accordingly direct that the order of the learned Additional District Judge appealed against be set aside and a letter of administration be issued with a copy of the will annexed in favour of the appellant. The appeal is thus allowed with costs throughout.

S.K. Dutta, J.

I agree.